Free «Tort of Negligence» Essay Sample

Tort of negligence is the most common type of tort in the United Kingdom. Having experienced any damage because of the careless attitude of other individuals to their duties, the suffered people enjoy the right to file a case to the court in order to obtain the coverage of their losses. Imposing the verdict, judges use a relevant case law.

Theoretical Framework

The Definitions of the Key Notions

The key notions of the tort of negligence issue are ‘tort’, ‘negligence’, vicarious liability and case law.

Tort can be defined as “a civil wrong or wrongful act, whether intentional or accidental, from which injury occurs to another” (Tort n.d.).

Negligence means “failure to exercise the care toward others, which a reasonable or prudent person would do in the circumstances or taking action which such a reasonable person would not” (Negligence n.d.).

Vicarious liability denotes the obligation of an individual to take responsibility for the wrong deeds of a person having committed physical or property damage (The Free Dictionary n.d.).

Case law can be defined as “reported decisions of appeals court and other courts which make new interpretations of the law and, therefore, can be cited as precedents” (Case law n.d.).

Negligence may lead to consequences of two key types, such as physical damage and property damage. According to the intention, negligence can be accidental and criminal. Filing the case into a court, a plaintiff is to prove several issues. Firstly, they have to demonstrate that the questioned defendant had a duty to the party that has suffered injury. Secondly, the plaintiff has to prove that the questioned defendant committed the actions that any reasonable individual would not do. Namely, the person could predict the negative consequences of his or her activity but he or she did not pay the necessary attention to the obligations following it. Thirdly, the very negligence led to the subsequent obtained physical or property damages. The key issue in the cases of negligence is the defendant’s possibility to foresee the results of his attitude to their responsibilities.

The tort of negligence compounds three major elements, such as duty of care, breach of the duty and damages.

Courts implement case law, judging the case of negligence. The cases of Donoghue v Stevenson (1932), Civil Liability (Contribution) Act (1978), Lister v Romford Ice & Cold Storage Co Ltd (1957), Lister v Romford Ice & Cold Storage Co Ltd (1957) and Barnett v Chelsea (1969) illustrate some legal concepts of the tort of negligence in the UK.

Scenario 1

Scenario 1 is the following. Move it Ltd firm employed a driver (John) who had to transport clients’ furniture by lorry. During the course of his employment, John committed the tort of negligence. Placing the furniture onto the trailer, the driver failed to manage the proper position of the latter that caused the ensuing property damage.

As it was mentioned above, the three elements included in any instance of the tort of negligence are duty of care, breach of the duty and damages.

The duty of care suggests that any individual is obliged to control their deeds. Therefore, the person is expected to predict the possible consequences of their activity and to do their best to avoid the wrong acts. In the present case, the driver had to foresee that his carelessness would cause the negative consequences, such as the property damage in particular. Donoghue v Stevenson (1932) is the precedent for establishing the rule of the reasonable duty to foresee the possible negative consequences of personal deeds (Elliott & Quinn, 2007, p.18).

The second element of the tort of negligence is the breach of duty. It means that any person cannot be liable for the punishment until the claimant proves two facts. To begin with, they must demonstrate that the claimant was owed a duty of care by the questioned defendant. Besides, they are supposed to prove that the breach of such duty actually took place. In the given case, John cannot be found guilty until the facts of his obligation to check the position of the trailer and his failure to manage it are proved.

Barnett v Chelsea (1969) case can be used as the illustration of the effect of proving the direct connection between the negligence and its negative consequences. It depicts the situation of the doctor having committed the tort of negligence by sending one of his patients home without a proper examination or providing him with the first aid. This patient died. Nevertheless, the court decided that the doctor was not liable for the punishment because that man would die in any case because of severe poisoning (Finch & Fafinski 2014, p.160).

The third constituent of the tort of negligence is damage. The standards of care are very important. The courts are to consider two points regarding the cases of the tort of negligence. Initially, the degree of possibility of the caused physical or property damage is to be taken into account. Thereafter, the defendant’s deeds to remove this damage risk are to be considered as well (Finch & Fafinski 2014, p.124).

Scenario 2

Scenario 2 narrates that the tort of negligence caused the accident, leading to the negative consequences. On the way to London, the trailer with the furniture detached from the lorry. As a result, it caused the accident on the road in which another driver had to avoid the rolling trailer and crashed into a tree. The physical damage here is a serious trauma of the driver. The property damage comprises $5,000.

Evaluating the duty of care, experts may come to the conclusion that the driver of the suffered car could not foresee the detrimental event, while the driver of the trailer was expected to prevent the fault in the equipment assigned to his responsibility and is now supposed to understand the results of his actions. Donoghue v Stevenson (1932) case law can be implemented under these circumstances.

Estimating the breach of the duty, the driver of the damaged car did not have the duty of care, while the driver of the trailer had such an obligation.

As for the damages, suffice it is to say that the driver of the suffered car had a very small possibility to avoid the accident. He was just learning to drive. This case, and especially its complexity, was beyond his competence. On the other hand, the driver of a lorry had to understand that poorly connected trailer might easily detach. In fact, all the damage happened because of his pre-operational carelessness. Barnett v Chelsea (1969) case law is suitable under the circumstances mentioned.

What is more, the suffered driver damaged the car belonging to another individual. The theory of vicarious liability regards the cases of transmitting the rights to drive a personal car as the relationship between an employer and an employee. The driver comes as an agent here. Therefore, the owner of a car bears the legal responsibility for all the actions the driver committed in this course. The driver did not appear to be financially obligated to Lucky Son, while the Move it Ltd firm is expected to compensate the losses.

Scenario 3

The rolling vanity caused the accident on the road. Consequently, the motorcyclist got a serious injury of his head and arm.

Speaking of the duty of care, the driver of the trailer cannot be found guilty of the accident. On the other hand, the trailer was full of furniture and the driver was expected to understand that it may fall on the road and lead to accidents. Donoghue v Stevenson (1932) case law illustrates the matter.

Nevertheless, regarding the breach of duties, this tort is not the reason for the punishment because the motorcyclist had committed his own tort of negligence, riding the transport mean without leathers and the helmet. He was to understand the risk of accidents on the road as well.

Considering the damages, the motorcyclist had to be prepared for such consequences happening because of his carelessness in some way. Case Barnett v Chelsea (1969) would be the perfect precedent for the protection of the driver of the lorry.

Scenario 4

The essential survey of the driving instructor may prove the fact of unusual weather conditions that week because of the rising damp being observed. Taking the duty of care into account, all the participants were to be careful. The state of affairs coincides with the above-mentioned statements.

As for the breach of duty, weather conditions are often unmanaged. Thus, the traffic participants could not influence the events completely.

Referring to the damage, the fact of rising dampness may be successfully used to reduce the guilt of the defendant because extra conditions might sometimes aggravate the situation.

Scenario 5

Both Lucky Son and Devan Poser, or both of them, may have a claim in the tort of negligence against John, the driver of the trailer belonging to Move it Ltd firm.

Vicarious liability takes place in cases of special legal relationships between the individuals, such as employers and employees or owners of transport means and drivers in particular. The relationships between employers and employees suggest that an employer is to be legally responsible for any deeds of his subordinate person connected with the scope of his or her working duties. Despite this fact, a guilty person committing the tort is liable for their own torts too. Filing the case into a court, a claimant may sue the individual who personally committed the tort, their employer or both of them. In the prevailing majority of cases claimers sue employers (Finch & Fafinski 2014, p.136).

The defence of a driver may focus on the facts of his deeds according the standard procedure. The lawyer is due to clarify two facts. First of all, whether there was some issue in the document about the driver’s direct ability to connect the trailer. Secondly, he should draw the attention to the immature driver of the car and poor weather conditions that week. Finally, he is advised to emphasize the employer’s responsibility for his employee’s actions.

The employer is expected to compensate all the losses. His lawyer may facilitate the case, noticing the above-mentioned facts. Finally, the employee may be forced to compensate a certain part of the loss. Section 1 (1) of Civil Liability (Contribution) Act (1978) establishes the right of a defendant to require the financial compensation for the damage from a factual defendant responsible for the tort. Later, Lister v Romford Ice & Cold Storage Co Ltd (1957) case became the precedent of the employer’s right to obtain an indemnity. It is the compensation of all the money paid to a claimant in case of the breach of the contract by an employee (Finch & Fafinski 2014, p.156).

 
   

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